Opinion
DOCKET NO. A-3092-13T2
12-04-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.R., Defendant-Appellant. IN THE MATTER OF M.R., K.R., M.R. and A.A., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Joseph F. Kunicki, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Toni Lynn Imperiale, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd S. Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket Nos. FN-16-59-13 and FN-16-99-13. Joseph E. Krakora, Public Defender, attorney for appellant (Joseph F. Kunicki, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Toni Lynn Imperiale, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd S. Wilson, Designated Counsel, on the brief). PER CURIAM
Defendant M.R. appeals from an August 22, 2013 fact-finding order, now final, that he neglected and abused his four children in violation of N.J.S.A. 9:6-8.21c, by being incapable of caring for them when their mother was in the hospital and exposing them to domestic violence. Because we conclude the Division of Child Protection and Permanency did not prove imminent danger or a substantial risk of harm to the children by a preponderance of the evidence, N.J.S.A. 9:6-8.21c(4)(b), -8.46b, we reverse.
This case has a somewhat unusual procedural history, which affected the Division's case against defendant. For that reason, we summarize more of the proceedings than we might otherwise. Although the Division amassed comprehensive information about M.R.'s significant shortcomings as a parent as set forth in its records, it inexplicably failed to insure that pivotal documents were properly admitted. The Division's proofs came almost exclusively from its screening summaries, investigation summaries, notes from its consultants and the psychological evaluations of M.R. and one of his children, not all of which was moved and admitted into evidence. We recount the evidence the Division had at its disposal.
M.R.'s family first came to the attention of the Division in May 2011 when someone alleged to the Division that M.R. was abusing drugs. The Division investigated and deemed the allegation unfounded. The case remained open, however, because M.R.'s girlfriend A.A., the mother of four of his five children, requested the Division's assistance in securing housing and other services.
The Division received another referral in October 2011 that M.R. was abusing drugs. Again, the Division investigated and deemed the allegations unfounded.
Almost a year later, the Division worker assigned to assist the family called A.A. on August 29, 2012. Although the phone was answered, A.A. did not speak. Instead, the worker heard a man yelling and the children crying. The worker called the police. When the worker saw A.A. later the same day, she observed A.A. had a swollen lip. A.A. claimed M.R. accidently hit her, and that she had hit him first. A.A. claimed the children did not witness the altercation the worker overheard, which did not square with what the worker heard over the open phone line.
On September 6, 2012, A.A. called the worker for help in finding a domestic violence shelter where she could go with her children. A.A. claimed M.R. had broken her nose and fractured the area under her eye causing her to seek treatment at a hospital. She was five months pregnant with twins. Although Division workers went immediately to A.A.'s home, which at the time was at M.R.'s parents' house, they were unable to see her.
Despite repeated efforts, the worker did not see A.A. for over a week. When the two finally met, M.R. was also present. A.A. denied that M.R. broke her nose or fractured her cheekbone. She said she was tired of the Division's involvement with her family and denied ever asking to go to a domestic violence shelter. She reported that she and M.R. always fought and that "they both put their hands on one another." She claimed M.R. was a good father and never hit the children. She further claimed the two did not fight in front of their kids, but admitted that one of the children had once witnessed an argument between the two of them. Because A.A. withdrew the allegations against M.R., and M.R. denied using drugs or engaging in domestic violence, the Division deemed the allegations against him unfounded.
As the couple was no longer cooperating in the receipt of services, the Division the following month filed a verified complaint and order to show cause pursuant to N.J.S.A. 9:6-8.21 and 30:4C-12, seeking to compel the couple to accept services to insure the safety of their four children, who then ranged in age from ten months to four years old. In addition to seeking care and supervision of the children, the Division sought to compel M.R. to complete a substance abuse evaluation and to compel A.A. and M.R. to complete a domestic violence and batterers' counseling program. The court granted the Division interim relief of care and supervision and, among other things, ordered M.R. to undergo a substance abuse evaluation and complete a domestic violence and batterers' counseling program.
At about this same time, M.R.'s parents refused to continue to allow A.A. and the children to reside at their home, and the Division moved A.A. and the children to a domestic violence shelter. On the return date of the order to show cause, the court continued care and supervision with the Division and again ordered M.R. and A.A. to complete a domestic violence and batterers' counseling program and ordered M.R. to undergo a psychological evaluation as well as a substance abuse assessment. Although M.R. appeared for an orientation session at the domestic violence intervention program, he did not keep further appointments, and the program closed out his case.
M.R. twice tested positive for marijuana in the first weeks of January 2013. He was assessed for substance abuse and enrolled in a treatment program. The provider reported to the Division that M.R. attended only one day during his first week in the program and "presented with angry behaviors." The provider claimed that M.R. acknowledged "having anger management issues" but denied any substance abuse problem, although admitting to regular use of marijuana. He did not attend the following week.
When he returned to the program during the last week of January 2013, M.R. tested positive for marijuana and "presented as angry and loud." The provider reported that as M.R. discussed his relationship with A.A., "he became very angry and began cursing and calling her names." He again admitted using marijuana but denied any substance abuse. He also said he had a domestic violence case with A.A. "but denies it being true." The provider reported that M.R. struggled to gain composure throughout the meeting, and concluded that "[i]t was evident by his behavior that he struggles with anger management issues as well as substance abuse issues although he denies so."
Also in January 2013, M.R. called the Division to say that two of the children had doctor's appointments, and that he was "the 'only one' who [could] take them." He wanted to know the location of the shelter so he could pick them up. He could not, however, provide the name of the doctor or the reason for the appointment. He claimed A.A. had let him know about the appointment, and that the shelter would not provide A.A. transportation to the children's doctor. The Division refused to give him any information as to A.A.'s whereabouts and directed M.R. to have her call the Division to arrange transportation for the children. A.A. called the Division shortly thereafter to report that M.R. "was lying," there was no appointment, and that M.R. "was trying to get her in trouble and was trying to find out where she was staying."
M.R. also appeared for a psychological evaluation with Dr. Allison Strasser Winston in January to assess his parenting capacity and allow the Division to arrange appropriate services. Dr. Winston reported M.R. made several completely contradictory statements about his criminal history and drug use in the course of the evaluation. He first claimed he started using marijuana in October 2012. When confronted with a report by his probation officer that he had tested positive for marijuana in July 2012, M.R. claimed "I told them that. I could say whatever I want. That's how I violated my parole. I didn't use in July. I just told them that." He denied current drug use, but admitted smoking marijuana twice a week between October 2012 and early January 2013.
M.R. also denied breaking A.A.'s nose, claiming "I don't know how she ended up with that. I don't know. I wasn't there when it happened." He told Dr. Winston that his almost five-year-old daughter "knows how to drive, I taught her when she was three." When Dr. Winston asked why M.R. decided it was a good idea to teach a toddler to drive, M.R.
Included in the record is Dr. Winston's evaluation of A.A. conducted on December 14, 2012, in which she relates that A.A., although reluctant to talk about the violence in her relationship with M.R. and minimizing its effect on her and the children, admitted "He broke my nose and fractured my cheekbone. That's it. . . . [I]t's not (a big deal) to be honest."
replied, in a defensive manner, "I learned how to drive when I was 12. What's wrong with a three-year-old holding a steering wheel in a big, empty parking lot? She knows what's she's doing." [M.R.] denied that this was dangerous, and continued, "My kids aren't stupid. There's nothing wrong with teaching them stuff."M.R. refused to complete the psychological assessment. After completing less than a quarter of the personality assessment questions, "he . . . simply circled columns of answers and had not made a genuine effort to read the items and respond to them."
Dr. Winston reported that M.R. "presented as highly defensive, hostile, and confrontational throughout the psychological evaluation." She concluded M.R. demonstrated a significant tendency to deny or minimize "his violent and aggressive behavior toward his children's mother as well as his illicit substance use." She found M.R. "demonstrated poor judgment with regard to his children and does not recognize the level of risk" to which he has exposed them. Dr. Winston concluded that M.R. was "currently incapable of providing his children with a safe and stable environment, nor will he be able to do so within the foreseeable future."
On February 11, 2013, the Division received a report that A.A. was in the hospital having given birth to twins and left the children in the care of her mother, an active drug user. Having Dr. Winston's evaluation of M.R. in hand and rejecting two of A.A.'s sisters, one of whom had an open matter with the Division, and the other of whom lived with a man who used drugs, the Division effected a Dodd removal. Two days later, the Division filed an amended complaint seeking custody of the children. The court approved the children's removal and granted custody to the Division. The court merged the care and supervision case into the custody matter under the new docket number.
A "Dodd removal" refers to the emergent removal of a child without a court order pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. See N.J. Div. of Youth and Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
M.R. appeared on February 12, 2013, at his substance abuse program "screaming at the top of his lungs" about his anger over the placement of the children in foster care. In an attempt to calm him, M.R.'s counselor offered to call the Division for information. She then attempted to explain the reasons for the removal to M.R. She reported that M.R. refused to listen, talked over her and made threats against the Division caseworker. The counselor was forced to call the police, who transported M.R. to the hospital to undergo a psychiatric evaluation. M.R. later claimed to the Division that the counselor lied about him making threats.
In March 2013, A.A. advised the caseworker she had left the shelter and was staying with a friend. She reported that M.R. had two weeks before "put a knife to my throat and said that he was going to kill me[;] . . . he also stated that he was going to shoot me[;] . . . he cut my hair off." A.A. secured a temporary restraining order against M.R. with the assistance of the Division. She, however, refused to file a police report and did not appear for the hearing, leading to the dismissal of the temporary order.
In May 2013, Dr. Winston evaluated the couple's four-year-old son, who had exhibited significant behavioral problems after being removed from his parents, including hitting and kicking his siblings and others. The little boy was in therapy and had reportedly told his counselor, "Daddy tells me that girls are bad and want to be beat. Daddy tells me to hit girls." He also reportedly told the counselor that his parents "yelled at each other and then Daddy will hit Mommy, and Mommy lets him hit her, because it's okay to hit her."
The boy told Dr. Winston during the evaluation that "[m]y dad hits my mom." He explained that his mom "was bleeding (when [M.R.] hit her in the nose). Then we got a lot of wipes to clean her nose. Me and my brother and my sisters." He knew also that she was seriously injured, saying "[s]he went to the doctor's to get bandages." He "acknowledged that his father has told him that it is not inappropriate to hit girls, adding, '[c]ause girls hit boys.'" He claimed that his parents "yell a lot. They just yell about nothing and they just scream. And they hit a lot. I just cover my ears with my punching thing. I don't like the fighting." He also claimed to have tried to get between his parents when they were arguing, "demonstrating that he had spread out his arms while his parents were fighting in an attempt to intervene, 'so they wouldn't fight.'" The boy also related that his father had hit him in the arm once and with a belt three times.
Dr. Winston found
noteworthy that [the boy] was able to describe the September 2012 incident in which [M.R.] had reportedly fractured [A.A.'s] nose, suggesting that he had witnessed the physical altercation and continues to have a relatively clear recall
of what he had seen, despite [A.A.'s] and [M.R.'s] denial of this incident and that their children had been present during any physical altercations between them. Of significant concern is that [the boy] has clearly been exposed to verbal and physical conflicts between his parents which are impacting on his current behavioral and emotional functioning. Also troubling is that [the boy] was also able to describe in great detail his father's anger management difficulties, and he appears to be imitating some of the angry and aggressive behaviors he had witnessed his father engage in at home.Dr. Winston concluded that "themes of violence pervade [the boy's] thoughts and feelings about his parents, reflecting the domestic violence he had witnessed when he had lived with his mother and father, and that these experiences have clearly affected [negatively] his current emotional and behavioral functioning."
On the day the matter was scheduled for a fact-finding hearing, M.R.'s counsel claimed he was not prepared as he had not understood the Division was intending to proceed against his client, as opposed to A.A. The court excused M.R.'s counsel, but insisted the matter go forward as to A.A. over the objections of both the deputy and the law guardian because of the overlap in the proofs.
The fact-finding hearing thus proceeded as against A.A. only. But as testimony was elicited as to drug use and domestic violence by M.R. in A.A.'s case, counsel sitting in for M.R. objected claiming the testimony was not relevant as to A.A. The court overruled the objection to the extent the testimony "has something to do with her." The court made clear, however, that it would "not consider [the testimony] against [M.R.]." At the conclusion of the hearing, the court found the Division proved by a preponderance of the evidence that A.A. had abused or neglected the children by exposing them to domestic violence and failing to properly plan for their care during the birth of the twins. A.A. did not appeal from that finding.
The only witness to testify at the fact-finding hearing against M.R. two months later was the Division supervisor, who explained the history of the matter and identified the Division's records admitted into evidence. The Division's theory was that M.R. abused and neglected his children by failing to engage in the substance abuse and batterers' intervention programs first ordered by the court in October 2012, thus rendering him an unsuitable placement when A.A. had to go into the hospital for the birth of the twins, and that he exposed the children to domestic violence.
M.R. contended he had no unsupervised contact with the children after they left his parents' home in October 2012 and thus the Division could not prove he abused or neglected them in February 2013. He further contended that the Division had already deemed unfounded the allegations of domestic violence in September 2012, and that his son's statements were not corroborated by admissible evidence.
In a very brief oral opinion, the court found the Division proved by a preponderance of the evidence that M.R. was "neglectful in that he didn't complete his services," specifically, that "[h]e didn't go to domestic violence counseling, he didn't participate fully in his psychological evaluation," and he "did not do anything about his substance abuse problems." The court further found the Division proved M.R. exposed the children to domestic violence. The court specifically found that "notwithstanding the . . . ruling in S.S., I don't have to have an expert here to tell me that when a young boy has to put his hands over his ears, or tries to stop his parents from engaging in . . . a physical altercation, [it] does affect him. And I find the burden has been met."
N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 22-26 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).
We are constrained to disagree. In our view, the Division, in the course of over two years of providing services to this family, marshalled more than adequate proof to establish that M.R. abused his children by exposing them to domestic violence. It did not, however, take care to insure its evidence was properly offered and admitted at the fact-finding hearing. That failure, coupled with the trial court's decision not to detail the evidence on which it rested its finding of abuse and neglect, makes it impossible to conclude the finding has sufficient support in the record. We are left with no alternative but to reverse.
The judge prefaced his oral opinion by saying, "My decision is not going to take long at all. I am not going to detail every piece of testimony that I heard, the record is rife with examples of why or how the Division did prove its case. Everything that the law guardian said and the [deputy] [a]ttorney [g]eneral said, I agree with." The judge's opinion does not comport with Rule 1:7-4(a), which requires the court in a non-jury trial to "state clearly its factual findings and correlate them with the relevant legal conclusions." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting Curtis v. Finneran, 83 N.J. 563, 570 (1980)).
Our role in reviewing a decision that a parent abused or neglected a child is to determine whether the trial court's findings in support of that decision are grounded in adequate, substantial, and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). The Division's obligation is to "prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" P.W.R., supra, 205 N.J. at 32 (quoting N.J.S.A. 9:6-8.46b).
By virtue of the governing statute, however, such evidence may include "any writing, record or photograph . . . made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency," provided it meets the specified admissibility requirements. N.J.S.A. 9:6-8.46a(3); see P.W.R., supra, 205 N.J. at 32. The statute further provides that "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46a(4) (emphasis added). We have held the "corroborative evidence need not relate directly to the alleged abuser, it need only provide support for the out-of-court statements." Z.P.R., supra, 351 N.J. Super. at 436.
Rule 5:12-4(d) permits the Division "to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal."
Rule 803(c)(6) in turn, is subject to the constraints of N.J.R.E. 808 mandating the exclusion of certain complex expert opinions contained in written reports unless the trial judge finds the circumstances involved in the making of the report and the likelihood of accuracy of the opinion tend to establish its trustworthiness. --------
Here, M.R.'s counsel objected to the screening summary detailing the allegations of the incident in which M.R. allegedly broke A.A.'s nose, and specifically to the embedded hearsay attributed to A.A. The court overruled the objection saying, "I'm not going to consider it, because it was unfounded." It is not clear from the record whether the court was not going to consider the screening summary relating the incident or the embedded hearsay, or both.
Counsel also objected to the admission of M.R.'s psychological evaluation because the expert was not present to be cross-examined on her opinions. The court responded, "[e]xcept that I don't think I'm going to be hearing an opinion based on the question I just heard. I'm going to hear about something that he did at the evaluation." The deputy confirmed the judge's understanding, and the judge noted counsel's "objection . . . for the record."
Several minutes later when the witness, at the deputy's request, recounted the expert's opinions from the evaluation, defense counsel renewed his objection. The court overruled it and permitted the Division supervisor to testify as to Dr. Winston's conclusions that M.R. "demonstrate[d] minimal awareness of how to ensure his children's physical and emotional safety and well-being and had no insight into his children's needs," and that he "is currently incapable of providing his children with a safe and stable environment." Notwithstanding that ruling, when the deputy attempted to move Dr. Winston's evaluation of M.R. into evidence, the judge said, "I won't consider the report. I'll consider what [M.R.] did, his actions."
M.R.'s counsel also objected to testimony regarding Dr. Winston's evaluation of M.R.'s son and the admission of her evaluation report. The law guardian responded as follows:
I would take the position that where there is domestic violence in a household and children are exposed to it, we can — assume that it's harmful to children. Here we have more than that . . . . We have a forensic evaluation of a child, done for whatever purpose, which says what the effect is — these are the child's statements, I'm not going to go to Dr. Winston's conclusions, I am only relying on what the child told Dr. Winston as in the report. And [M.R.'s counsel] can call her in and have her come and testify. There is nothing to prevent him from doing that.
After an ensuing lengthy discussion regarding the applicability of our opinion in S.S., and whether the court could consider the statements of the child to his counselor and Dr. Winston, the court ruled,
[S.S.] stands for the proposition that I cannot . . . conclude that the child in this case may have been affected mentally by witnessing domestic violence.
But I read it also as saying I can still consider the fact that the child said that. And it is corroborated by other evidence in the case. While I won't consider that he was mentally affected by it, in a detrimental way, I will still consider that he said it and then it goes to the weight of the evidence.
M.R.'s counsel, however, had already raised several objections regarding the admissibility of evidence offered to corroborate, in compliance with N.J.S.A. 9:6-8.46a(4), the child's statements to Dr. Winston, including that A.A.'s admissions as a party-opponent were not properly admitted against M.R. See N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405, 421 n.5 (App. Div. 2014), vacated on other grounds, 223 N.J. 160 (2015). In response, the law guardian argued:
I think that the statements can be corroborated because [the child] also made very similar, almost verbatim statements to his counselor from Full Circle Counseling[.]The court responded:
Weren't they also corroborated by the mother going to the hospital and the mother, even though she eventually recanted, she still indicated at some point that . . . he had physically abused her, right?This led M.R.'s counsel to again object, noting that there was no proof before the court that A.A. had gone to the hospital for treatment of a broken nose. The law guardian countered by arguing:
Well, we have that testimony in the other fact finding, that's part of this case and part of the record in this case.Defense counsel again objected, arguing, "This is the fact finding against [M.R.]." The court responded:
I can't . . . ignore something that I heard . . . in a related trial.
A review of this transcript and the documents admitted into evidence, including those admitted only for a limited purpose, makes plain the absence of adequate evidential support for the trial court's conclusion that M.R. exposed his children to imminent danger and a substantial risk of harm by failing to complete court ordered services and engaging in domestic violence.
We turn first to the court's conclusion that M.R. neglected his children by failing to engage in services. Although both the Division and the law guardian contend a father's failure to engage in services, making him unable in the Division's assessment to assume the care of his children when their mother became unavailable, constitutes abuse and neglect, neither cites a single case in support of that argument. It is undisputed that M.R. did not have custody of the children or even know their whereabouts when A.A. went into the hospital to deliver twins. Accordingly it is difficult to conceptualize how he posed a risk to them at that point in time.
Although we find it unlikely that the statutory definition of an abused or neglected child under N.J.S.A. 9:6-8.21c(4)(b), can be stretched to cover the circumstances of this case in February 2013, we cannot reach that issue on this record. The testimony by the Division supervisor was unequivocal that the Division relied on Dr. Winston's evaluation in determining that it could not explore M.R. for placement when A.A. went into the hospital. The Division, however, did not call Dr. Winston to testify and the court admitted her report only for the limited purpose of proving that M.R. did not complete the personality assessment component of the evaluation.
Without the ability to consider Dr. Winston's insights and opinions of M.R.'s capacity to safely parent his children, the trial court had no ability to assess the Division's conclusion that it could not consider M.R. for placement when A.A. was hospitalized. Put another way, without Dr. Winston's report, the Division was unable to prove that placing the children with M.R. would put them in imminent danger and substantial risk of harm. It was not enough to show that M.R. failed to comply with services, the Division had to further show that without those services the children would be in imminent danger and substantial risk of harm in his care. Thus even assuming arguendo that N.J.S.A. 9:6-8.21c(4)(b) would be applicable to the circumstances of this case in February 2013, the Division could not succeed in proving its case without the expert testimony it failed to adduce.
The Division's ability to prove that the children were actually harmed or placed in imminent danger and a substantial risk of harm by witnessing domestic violence is even more compromised on this record. First, of course, the Division would have to show that domestic violence occurred.
The Division relied on two incidents occurring in late August and early September 2012, those in which a worker heard an argument over an open phone line and later saw A.A. with a split lip, and A.A.'s allegation a week later that M.R. broke her nose and shattered a cheekbone. The Division, however, deemed those incidents unfounded, raising at least a question as to whether it could proceed on them at trial. See P.W.R., supra, 205 N.J. at 36 n.15 (discussing trial court's error in relying on allegation the Division deemed unfounded in finding physical abuse).
The court here, although initially ruling that it would not consider the allegations because they were unfounded, and further would not consider any testimony adduced at A.A.'s fact finding against M.R., appeared to proceed to do precisely that, stating with regard to A.A.'s broken nose that "I can't . . . ignore something that I heard in a related trial."
The child's statements to Dr. Winston regarding the domestic violence he witnessed between his parents were certainly admissible under N.J.S.A. 9:6-8.46a(4), but they required corroboration to serve as a basis for a finding of abuse and neglect. Although the law guardian argued the child's "very similar, almost verbatim statements to his counselor" could be considered as corroboration, we disagree. We do not dispute that the consistent retelling of an incident may be an indication of trustworthiness under certain circumstances. But it is doubtful the Legislature intended that a child's out-of-court statement of abuse and neglect could be corroborated by the child's mere repetition of the statement. See M.C., supra, 435 N.J. Super. at 422 (discussing inability of one child's hearsay statement to corroborate another child's hearsay statement).
M.R. objected to A.A.'s admissions as to domestic violence being admitted against him pursuant to N.J.R.E. 803(b). Although the court overruled his objection, on the basis that the incident could not be considered regardless of the hearsay because the Division deemed it unfounded, it would not appear the statements attributable to A.A. in the Division's records would be admissible for the truth of the matters asserted in M.R.'s case. She did not testify and does not appear to have spoken to the Division workers with M.R.'s authorization or as his agent. While A.A.'s statements could be properly admitted against her, it would not appear they could be admitted against M.R. See M.C., supra, 435 N.J. Super. at 421 n.5.
There was, without doubt, other corroboration of the child's statements available, although not admitted at M.R.'s trial. In her report, Dr. Winston mentions that the Division, apparently after deeming the incident unfounded, discovered hospital records confirming A.A. sought treatment for a broken nose around the time she reported it to the Division. Because "corroborative evidence need not relate directly to the alleged abuser" but "only provide support for the out-of-court statements," Z.P.R., supra, 351 N.J. Super. at 436, hospital records of A.A.'s treatment for a broken nose would certainly corroborate the child's statements of his mother going to the doctor for bandages after seeing M.R. hit her and bloody her nose.
Dr. Winston's evaluation of the boy, specifically her opinion that his anger and aggressiveness resulted from witnessing his father engage in verbally and physically aggressive behavior toward his mother, would likewise likely be considered corroborative of his statements. See N.J. Div. of Child Prot. & Permanency v. I.B., 441 N.J. Super. 585, 594-95 (App. Div. 2015) (holding psychological testimony could serve as indirect corroboration of child's allegation of sexual abuse).
But Dr. Winston, however, did not testify. The Division offered her report pursuant to Rule 5:12-4(d). See N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 129 (App. Div. 2010). The Division neither sought a ruling on its admissibility in accordance with N.J.R.E. 803(c)(6) and 801(d), nor called her to testify. Although we have noted that psychological and bonding evaluations procured by the Division in aid of termination litigation would not be appropriately admitted over objection pursuant to N.J.R.E. 808, see N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 173-75 (App. Div. 2012), this evaluation was sought not for litigation purposes but because of the little boy's obvious behavioral difficulties. Although we express no opinion as to its admissibility, in the event the court deemed it inadmissible the Division presumably could have called Dr. Winston to testify.
That brings us to our final point, which is our disagreement with the trial court that it could have concluded on this record that the child suffered actual harm from his exposure to domestic violence without expert testimony. As we have already noted, the court did not make specific factual findings. Thus, it is not possible to tell what evidence it accepted to establish that domestic violence occurred and, if based on the child's statements, the evidence it found to corroborate those statements. We held in S.S. that the trial judge erred by "assuming" emotional harm to the child "as the result of witnessing domestic abuse" without any evidence of emotional injury. 372 N.J. Super. at 22-26. While there was documentation of actual harm to this child, it was found in the conclusions of Dr. Winston's report, which was not admitted into evidence.
We are keenly aware of the anomaly of this result, that is that A.A. was found to have abused and neglected her children in part because of the domestic violence she suffered at M.R.'s hand, while he avoids the same judgment. As we have taken pains to note, before the hearing the Division assembled ample evidence to prove the existence of abuse and neglect against M.R. in furtherance of its role as the protector of these children. Neither it nor the law guardian, for whatever reason, insured that evidence was properly offered and admitted. As a result, M.R. was deprived of a fair opportunity to confront that evidence at his hearing. The Supreme Court has made plain that courts balancing a parent's constitutionally protected right to a relationship with a child against the State's parens patriae responsibility to protect the welfare of children "must ensure that the statutory and constitutional rights of the parent . . . are scrupulously protected." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009). When, as here, those rights are not protected, our role is to reverse.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION